Published 7:00 pm, Sunday, December 18, 2005

In late July, the state Supreme Court issued an opinion on the Glass v. Goeckel case that stated the public trust doctrine protects people's rights to walk along the shores of the Great Lakes below the ordinary high water mark and private shoreline property owners do not have exclusive use of the property to the waters edge because of this doctrine. In strong disagreement with this decision, members of Save Our Shoreline, along with defendants Richard and Kathleen Goeckel, are asking the U.S. Supreme Court to review the state Supreme Court decision in hopes the higher court will reverse the lower courts judgment.

Recently, SOS and the Goeckels filed a Petition for Writ of Certiorari with the U.S. Supreme Court. SOS Board Member and attorney Joe McBride of Caseville said the state Supreme Courts decision violated the fifth and 14th amendment of the U.S. Constitution.

The fifth amendment states there cannot be a taking of private property for public use without just compensation, and the 14th amendment applies the Constitution to the states, so the state cannot take private property without compensation, McBride said.

In its decision, the state Supreme Court stated although defendants retain full rights of ownership in their littoral property, they hold these rights subject to the public trust. Therefore, the defendants cannot prevent the plaintiff, Joan Glass, from enjoying the rights preserved by the public trust doctrine. The opinion further stated because the public trust doctrine preserves public rights separate from a landowner's fee title, the boundary of the public trust need not equate with the boundary of a landowner's littoral title.

The court stated common law of the oceans, including the ordinary high water mark, has been used by Michigan courts to mark the landward boundary of the public trust. The court also points to the definition of ordinary high water mark in Wisconsin law, since Wisconsin is another Great Lakes state with an extensive shoreline.

The state Supreme Court decision reversed the May 2004 judgment of the Court of Appeals, which supported the defendants and stated Great Lakes shoreline owners have exclusive use of the beach to the waters edge.

The case started in Alcona County Circuit Court in 2002. This court ruled in favor of the plaintiff and stated The Great Lakes Submerged Land Act (GLSLA) supports the plaintiff's argument that she has the right to use the shore of Lake Huron lying lakeward of the natural ordinary high water mark.

McBride said the state Supreme Court ignored Michigan law in its decision on the case.

I cant believe the (state) Supreme Court would miss the mark so far, he said. McBride and others in SOS believe the state Supreme Court decision on Glass v. Goeckel changed a 1930 decision that limited public rights to the waters edge. They also believe the decision opens the door for future courts to authorize further public uses which may be considered inherent in the exercise of hunting, fishing, and navigation.

This case is important not just to preserve the private nature of Michigans Great Lakes beaches, but also it is an important test of our Constitutional protection of our private property, stated SOS President Ernie Krygier of Bay City in a press release. In 1930…the Michigan Supreme Court told us that Michigans beaches were private…if the U.S. Supreme Court now allows the state of Michigan to simply take Michigans shores, then no ones property can be considered safe from government confiscation.

While the Glass v. Goeckel case partially dealt with the publics right to walk along the beach as a recreational activity, SOS representatives state their concern is not with walking  its with the expansion of public control over Michigans beaches through the… public trust doctrine, the press release stated.

McBride said while he and SOS members feel the state is unduly taking over their private shoreline property with the Glass v. Goeckel decision, SOS members are not interested in getting compensation from the government.

Thats not what were after, he said. The U.S. Supreme Court needs to look at what our constitution stands for.

SOS members have always held that shoreline property owners own to the waters edge and the public trust doctrine is lakeward to the waters edge and does not extend onto dry land.

We hope the U.S. Supreme Court enforces Michigan law, both common law and case law, and applies it to the Glass v. Goeckel case, McBride said. We hope the court does not permit a judicial taking by the Michigan Supreme Court.

Those who oppose SOSs viewpoint and support Glass position, including some environmental groups, state SOS members have misinterpreted past Michigan cases dealing with the public trust doctrine and how it relates to ownership of shoreline property. They believe shoreline property owners do not have exclusive ownership rights to the waters edge and the publics right to use the shoreline for recreational purposes is and has always been protected by state law.

McBride said now that the Goeckels and SOS have filed a request for the U.S. Supreme Court to review the Glass v. Goeckel decision, those on the Glass side of the case will file a response in opposition to having the case reviewed.

McBride said five judges on the U.S. Supreme Court would need to agree to review the case, and after gathering documents and hearing oral arguments, the court would make a decision on the case. The decision would either uphold the Michigan Supreme Court decision or overturn it.

McBride said the U.S. Supreme Court probably wont make a decision on whether or not to review the case until fall 2006.